Avowed Gays' Ouster Ok, Court Rules

February 27, 1990|By Los Angeles Times

WASHINGTON — The military may discharge acknowledged homosexuals even without evidence that the servicemen in question committed homosexual acts, according to two rulings that the Supreme Court let stand Monday.

The decisions uphold the Defense Department's strict policy that says "homosexuality is incompatible with military service" and allows for the removal of gays if they admit a "propen sity" to commit homosexual acts.

In dismissing appeals from two homosexuals Monday, the high court showed again that it does not consider discrimination based on sexual orientation as a violation of the Constitution's guarantee of "equal protection of the laws" for all.

It also blunted a gay legal effort that had produced lower court rulings undercutting the prohibition in other cases.

"The court decision doesn't mean that the issue is over," said Peri Jude Radecic, a leader of the National Gay and Lesbian Task Force. She said that the next plan of attack was to rally sympathetic congressmen to pressure the Pentagon to change the "deeply irrational policy."

In recent decades, the court has said that discrimination based on race, national origin or gender is unconstitutional, but it has refused to extend this protection to cover sexual orientation. As a result, government officials may discriminate against homosexuals so long as they can furnish some reason for doing so.

In 1982, in response to criticism from gay rights groups, the Defense Department issued a policy stating that excluding homosexuals from the military would help "maintain discipline, good order and morale...foster mutual trust and confidence among service members, (would) maintain the public acceptability of military service and...prevent breaches of security."

In several lawsuits, gay servicemen and women have chal lenged this policy as irrational and a violation of the equal-treatment guarantee.

For its part, the Supreme Court has been distinctly unsympathetic to homosexuals' appeals. In 1986, the court ruled 5-4 that states may prosecute homosexuals for sodomy. On other occasions, the court has refused to hear an appeal from a homosexual in the military.

Lawyers challenging the military's ban hoped that the Supreme Court might hear appeals of two service personnel who were discharged for their sexual orientation alone, not for evidence of homosexual acts.